2016 Year in Review: International Criminal Law

By Sara Probber

International Criminal Court (ICC)

The ICC has been taking on new and challenging cases.  However, this has undermined the support of various states for its mandate. There have been several cases that have demonstrated the ICC prosecutor’s more comprehensive ability to prosecute individuals for their crimes.   The ICC has seen expansions on several fronts including prosecuting individuals for new types of war crimes, prosecuting leaders, and working as a complement to domestic legal systems to impose more rigorous sentences.   Some landmark cases include:

• Ahmad Faqi Al Mahdi charged him with ordering the destruction of monuments in Timbuktu. This is the first case to focus on cultural destruction as a war crime. 
• Germaine Katanga, a warlord from the Democratic Republic of Congo, had been sentenced by the ICC to 12 years imprisonment and was due to be released early in January 2016.  He was transferred back to the DRC in December 2015 to serve the remainder of his sentence. In early February, the DRC requested leave from the ICC for the prosecution. On April 7, 2016, the President of the ICC approved the prosecution of Katanga by the DRC stating that the charges were different from those at the ICC. This is the first time the Court has been called upon to interpret and apply Article 108, Paragraph 1 of the Rome Statute, which requires ICC approval of prosecution of an individual in the custody of a State of enforcement. 
• The trial of Laurent Gbagbo, the former president of the Côte d’Ivoire, began 28, 2016. This trial was the first time that the ICC has had a former head of state in trial facing charges. 
• Dominic Ongwen, on January 22, 2016 was accused of 70 crimes including war crimes and crimes against humanity in proceedings intended to confirm the charges.
• On February 12, 2016, the appeals chamber placed a limitation on the prosecution ruling that they could not use recorded statements by five witnesses who either recanted those statements or failed to show up in court. Accordingly, on April 5, 2016, the ICC dismissed the case against Ruto and arap Sang, who had been charged with three crimes against humanity related to the violence following Kenya’s disputed elections in 2007. 
• On March 21, 2016, Jean-Pierre Bemba, who led the Congolese Liberation Movement, was convicted for war crimes and crimes against humanity committed in the Central African Republic. This was the first conviction for the crime of rape at the ICC. He was sentenced to 18 years imprisonment.

The backlash from the broader prosecutorial scope has been widespread. ICC Memberships were in contention throughout 2016.  On January 27, 2016, the ICC authorized an investigation into the alleged war crimes and crimes against humanity committed by Russia in South Ossetia between July 1 and October 10, 2008. Russia de-signed the Rome Statute on November 16, 2016. In October, Burundi, Gambia, and South Africa also announced withdrawals, although in 2017 a court found South Africa’s withdrawal was unconstitutional so it is not settled. On November 14, 2016, the ICC prosecutor announced that there was a “reasonable basis to believe” American soldiers had committed war crimes in Afghanistan. The crimes likely to be considered would include torture if a full-fledged investigation were launched. 

National and Supranational

National and supranational bodies have taken on a prominent role in trying international criminals and internationally convicted individuals within their own borders.  However, cross-border cooperation has proved problematic for domestic justice systems.

Conviction of Hissène Habré

On May 30, Hissène Habré, the former Chadian president, was sentenced to life in prison by the Extraordinary African Chambers in the Senegalese court system. Charges included torture, war crimes, and crimes against humanity connected with his rule of Chad from 1982 to 1990.

Lithuanian War Crime Trials of Former Soviet Officials

On January 27, 2016, Lithuania began war crimes trials for 65 former Soviet military officials based on their actions during Lithuania’s 1991 independence movement. The actions of the Soviet Army resulted in 14 civilian deaths and more than 700 wounded individuals.  Russian officials have refused to assist and many of the accused will not attend the trial and instead by represented by court-appointed attorneys.

Extradition and Extraterritorial Jurisdiction

On May 10, 2016 the European Court of Justice ruled that in order to preserve the freedom of movement of European Union nationals, if the extradition of a national of one member state is sought by a non-member, the state to whom the request is made must give priority to the individual’s state of nationality. The purpose of this measure is to maintain the equality of treatment for nationals and non-nationals moving freely within the EU while still providing recourse for unlawful action by returning an individual for prosecution in his state of nationality. This ruling is not binding on subsequent decisions, but may set a difficult precedent for the United States, a nation whose laws permit the extradition of nationals. 

Syria

The United States has used active rhetoric regarding the Syria conflict, and has sought, domestically, to call for action.  However, in 2016 this was restricted to calls by the House of Representatives to direct a UN ambassador and condemnation and calls for investigations. 

The High Commissioner for Human Rights asserted that war crimes should not be part of any Syria amnesty on February 1, 2016. In mid-March the House of Representatives called on the President of the United States to direct his ambassador to the UN to promote the establishment of a war crimes tribunal, which, based on the resolution, might have jurisdiction over US nationals.

On March 17, 2016 John Kerry announced, during a news conference at the State Department, that, in his judgment, “Daesh is responsible for genocide against groups in areas under its control including Yazidis, Christians and Shia Muslims."  On October 7, Kerry accused Russia and Syria of war crimes and called for an investigation of their actions in Syria.

Kosovo

In mid-January the Dutch Ministry of Foreign Affairs confirmed that there will be a tribunal set up in the Hague to try alleged crimes committed by the Kosovo Liberation Army from 1999-2000.

On January 21, 2016, Oliver Ivanovic, who is considered a political moderate, was charged with war crimes and received a nine-year sentence from EU’s Rule of Law Mission (EULEX).  He was the leader of a paramilitary police force in 1999.  The four men accused alongside him were acquitted.  He is under house arrest pending appeal.

International Criminal Tribunal for the Former Yugoslavia

The ICTY continued to issue rulings and began to transition further deliberations to the Mechanism for International Criminal Tribunals (“MICT”) – the successor to the ICTY. On March 24, 2016, Following an eight-year trial by the ICTY, Radvoan Karadzic has been found guilty of 10 of the 11 charges brought against him and sentenced to 40 years in jail.  Of the two counts of genocide, the Bosnian Serb leader was found guilty of the count relating to Srebrenica. Karadzic plans to appeal his sentence.  

On March 31, 2016, the ICTY acquitted Vojislav Šešelj, President of the Serbian Radical Party of three counts of crimes against humanity and six counts of war crimes. He was accused of having committed the crimes as part of a Joint Criminal Enterprise, but the court ruled that the purpose of the enterprise was political and not clearly criminal resulting in the acquittal.

Goran Hadžić’s trial, which began in 2012 and included 14 counts of war crimes and crimes against humanity, was indefinitely stayed on April 6, 2016, after he was deemed unfit to stand trial due to an inoperable brain tumor. The trial was terminated after his death on July 12, 2016.

On December 15, 2015, the ICTY ordered a retrial for Jovika Stanišić and Franko Simatović.  The retrial will take place under the MICT.

The prosecution and defense Final Trial Briefs were filed in Ratko Mladic’s trial on October 25, 2016.  This is the final trial at the ICTY and after the trial judgment the MICT will assume jurisdiction. Mladic faces an 11-count indictment including charges of genocide, crimes against humanity, and war crimes. Closing arguments began December 5, 2016.